Edwards v. Edwards

720 So. 2d 956, 1998 Ala. Civ. App. LEXIS 338, 1998 WL 211659
CourtCourt of Civil Appeals of Alabama
DecidedMay 1, 1998
Docket2970024
StatusPublished

This text of 720 So. 2d 956 (Edwards v. Edwards) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. Edwards, 720 So. 2d 956, 1998 Ala. Civ. App. LEXIS 338, 1998 WL 211659 (Ala. Ct. App. 1998).

Opinion

CRAWLEY, Judge.

In February 1994, Ronald Walter Edwards (the “father”) and Sharon K. Edwards (the “mother”) were divorced in Pike County, Alabama. The parties agreed that the mother should have custody of the parties’ two minor sons, subject to the father’s visitation rights. The trial court incorporated the parties’ agreement into the divorce judgment.

In June 1997, the father filed a petition to modify, alleging that a material change in circumstances had occurred that warranted a change in custody from the mother to the father. The mother filed a motion to dismiss the petition or to transfer it for want of jurisdiction, which was denied. Thereafter, the mother filed an answer and a counterclaim, requesting modification of the father’s child support obligation.

After a hearing, the trial court issued an order, transferring custody of the parties’ two minor sons from the mother to the father. The trial court stated that the father had met the “McLendon standard”1 by “showing that an award of custody to him would materially promote the best interest and welfare of the children.” The mother filed a motion for a new trial, which was denied. The mother appeals.

First, the mother contends that the trial court committed reversible error when it declined to dismiss the father’s petition for lack of jurisdiction. The mother argues that Alabama no longer has jurisdiction of this matter because Alabama is no longer the “home state” of the minor sons.

As previously noted, the parties were divorced in Pike County, Alabama, and the divorce judgment awarded custody of the minor sons to the mother. There is no dispute that the trial court had jurisdiction to enter the original divorce judgment. Thereafter, the mother and the minor sons moved to Tallahassee, Florida. The father continues to reside in Pike County, Alabama.

This court stated the following in Webster v. Webster, [Ms. 2960985, December 5, 1997] — So.2d-,-, (Ala.Civ.App.1997):

“To the extent that the P.K.P.A. conflicts with the U.C.C.J.A., the federal statute preempts the provisions of the state statute. Flannery v. Stephenson, 416 So.2d 1084, 1038 (Ala.Civ.App.1982).
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“Our supreme court took the opportunity to extensively interpret the application of the P.K.P.A. in Ex parte Blanton, 463 So.2d 162 (Ala.1985). The crux of the Blanton holding was that once jurisdiction is established in one state, that state continues to have jurisdiction under the P.K.P.A., as long as the child or one of the contestants remains in that state. Id. at 167. That court stated:
“ ‘If one or more of the above-named parties continued to reside in Louisiana at the time the Mobile court exercised its jurisdiction, the Louisiana court’s continuing jurisdiction triggered § 1738A(g) and the action of the Mobile court, even though proper under Alabama’s “home state” provision, was barred.’
“Id.”

[958]*958This court also stated the following in Lyon v. Lyon, 618 So.2d 127, 129 (Ala.Civ.App.1992):

“Alabama courts have ‘continuing preferred’ jurisdiction over custody matters if the initial custody determination was entered with proper jurisdiction and either the child or either parent continues to reside in Alabama.”

In light of the foregoing, the trial court in the present case clearly had jurisdiction over this matter and, thus, did not err when it denied the mother’s motion to dismiss for lack of jurisdiction.

Second, the mother argues that the trial court committed reversible error when it overruled her hearsay objection to the father’s testimony regarding statements made by the minor sons. Under Rule 802, Ala. R. Evid., hearsay is not admissible unless it falls within some recognized exception. The trial court overruled the mother’s hearsay objection and allowed the father to testify regarding the reasons the minor sons had given the father for wanting to live with him. The father testified that the minor sons told him that they wanted to live with him because they are afraid of the mother’s boyfriend.

Both the sons were questioned by the trial court, and their testimony is part of the record. Both of the sons told the trial court that the mother’s boyfriend scares them. The father’s testimony was merely cumulative and corroborative of the minor sons’ testimony. Consequently, we conclude that if the trial court did commit error when it allowed the father to testify regarding the reasons the minor sons had given for wanting to live with him, it was harmless error. Rule 45, Ala. R.App. P.

Last, the mother contends that trial court abused its discretion when it transferred custody from the mother to the father because, she says, the father failed to present evidence sufficient to meet the burden of proof imposed by Ex parte McLendon, 455 So.2d 863 (Ala.1984). In McLendon, our supreme court determined that a parent seeking to have custody provisions modified must show that a change in custody will materially promote the minor children’s welfare and best interests and that the positive good brought about by the change will offset the inherently disruptive effect of uprooting the children.

We recognize that the appellate courts presume that a trial court’s determination regarding the modification of the custody provision of a divorce judgment is correct because the trial court had the opportunity to hear the evidence and observe the witnesses and, thus, is in the best position to adjudge the best interests of the minor children. Voloshik v. Voloshik, 505 So.2d 1233 (Ala.Civ.App.1986). We further recognize that the trial court’s determination will not be disturbed on appeal unless the evidence fails to support the determination and it appears to be plainly and palpably wrong. Voloshik, 505 So.2d at 1233.

The father maintains that the evidence before the trial court demonstrated that a change in custody would materially promote the minor children’s welfare and best interests and demonstrated that the positive good brought about by the change would offset the inherently disruptive effect of uprooting the children. However, we cannot agree.

The record reveals the following pertinent facts: The mother and the minor sons moved to Tallahassee, Florida, after the divorce because the mother’s parents and brothers live there. The maternal grandparents live approximately a mile and a half from the mother’s home and are actively involved in the lives of the parties’ minor sons. The minor sons are involved in numerous activities in Tallahassee—church, school, sports. The older son has been diagnosed with ADD and is enrolled in an attention deficit disorder (“ADD”) program in the Tallahassee schools. Each son has his own room at the mother’s house in Tallahassee.

The mother meets the father at the Florida-Alabama state line on Friday evenings so that the father can exercise his weekend visitation with the minor sons. It should be noted that just before the hearing on the father’s petition to modify, the parties’ minor sons were staying with the father because it was summer visitation. The older son testified that he had been at the father’s home for [959]

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Related

Ex Parte Blanton
463 So. 2d 162 (Supreme Court of Alabama, 1985)
Ex Parte McLendon
455 So. 2d 863 (Supreme Court of Alabama, 1984)
Lyon v. Lyon
618 So. 2d 127 (Court of Civil Appeals of Alabama, 1992)
Voloshik v. Voloshik
505 So. 2d 1233 (Court of Civil Appeals of Alabama, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
720 So. 2d 956, 1998 Ala. Civ. App. LEXIS 338, 1998 WL 211659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-edwards-alacivapp-1998.